Two foreign national prisoners (FNPs), Kadian Mighty and Walumba Lumba, have won a significant victory for the rule of law in the Supreme Court.

It has been a long struggle. Both men, ‘foreign national prisoners’, came to the end of prison sentences between March and June 2006 – and became embroiled in the fall-out from the tabloid-inspired ‘scandal’ over the failure of the Home Office to consider released foreign national prisoners for deportation – a scandal which forced Charles Clarke’s resignation as home secretary. Walumba Lumba, from the DRC, should have been released in June 2006 at the end of his four-year sentence for wounding – but he remained in prison for over four and a half years, under Immigration Act powers, which set no statutory limit on immigration detention. His marriage broke down, he began to suffer psychiatric problems and eventually, in February 2011, he left the UK ‘voluntarily’ rather than remain locked up. Jamaican Kadian Mighty was held for an additional two years following his sentence, before being granted bail in July 2008 pending his appeal against deportation.

The men challenged their continued detention in the High Court, citing Home Office published policy creating a presumption in favour of release in all cases. But in the course of the proceedings, their lawyers discovered a secret policy, applied in the wake of the ‘foreign national prisoners scandal’, which was described by home secretary Jacqui Smith in 2007 as a ‘near blanket ban’ on the release of anyone whom the Home Office wished to deport for commission of criminal offences. The secret policy was only disclosed in September 2008 – and the courts found in email correspondence ‘a deliberate decision taken at the highest level to conceal the policy that was being applied and to apply a policy which, to put it at its lowest, the Secretary of State and her senior officials knew was vulnerable to legal challenge’. (Read an IRR News story: ‘Segregating foreign national prisoners’)

The men’s lawyers argued that their detention was unlawful, both because of the ‘blanket’ nature of the ban on release, so that there was no individual assessment of the risks posed by the men, and also – crucially – because the policy to detain FNPs was secret, and diametrically opposed to the published policy. But in 2008 the High Court accepted the Home Office argument that even if the detention was pursuant to an unlawful policy, it was not unlawful because the men would have been detained anyway. The Court of Appeal went even further in its deference to the Home Office, saying that there was not even any obligation to publish the policy.

The men appealed to the Supreme Court, where they were supported by the organisations JUSTICE and Bail for Immigration Detainees (BID). Their appeals were allowed by a 6:3 majority in the Supreme Court – which unusually sat with nine judges instead of the usual five, in view of the importance of the case – and ruled that the men were entitled to damages for unlawful detention, opening the way for hundreds, if not thousands of claims on behalf of FNPs detained during the period when the secret policy was in effect.

The majority of the judges were scathing about the Court of Appeal’s conclusion that there was nothing wrong with the Secretary of State applying unpublished policy; it is vital, they pointed out, that people know the principles and criteria which are being operated to deprive them of their liberty. They were equally scathing about the argument that the detention of the men was lawful despite application of an unlawful policy, because they probably would have been detained even if the right policy had been applied. This was, Lord Dyson said, rewriting history.

Delivering the lead judgment, Dyson observed of the minister and her senior officials: ‘For political reasons, it was convenient to take a risk as to the lawfulness of the policy that was being applied and blame the courts if the policy was declared to be unlawful.’

Two of the Law Lords, Lord Hope and Lord Walker, expressed the view that ‘the conduct of officials, including some senior officials, of the Home Office between April 2006 and September 2008 amounted to a serious abuse of power’.

This is another important judgment in which the Home Office has been brought to book for its casual breaches of foreigners’ fundamental rights, and fundamental rules of law, for the sake of political expediency. Eric Metcalfe, JUSTICE’s director of human rights policy, said, ‘This ruling … sends a message that the Home Office is not above the law, and cannot hope to evade it by operating a secret policy of detention.’

As Lord Bingham said in his book The rule of law, quoted by Lord Collins in his speech, ‘Chapter 39 of Magna Carta (1215) said that “no free man shall be seized or imprisoned … except … by the law of the land”; these are words which should be inscribed on the stationery of the … Home Office.’

Related links

Download the judgment here (pdf file, 484kb)

Download the Supreme Court press release here (pdf file, 116kb)

JUSTICE

Bail for Immigration Detainees (BID)

Read an IRR News story: ‘Deportation imminent – detention indefinite’

Read an IRR News story: ‘Segregating foreign national prisoners’